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Court Rules Prisoner May Pursue Collateral Attack on Escape Conviction When Charge Was Based on Violation of Invalid Postrelease Control Sentence

The Supreme Court of Ohio ruled today that when an offender has been convicted of the crime of escape for violating the terms of a postrelease control sentence, the offender is not barred by the doctrine of res judicata from pursuing a  collateral attack on his escape conviction based on a claim that the postrelease control sentence underlying that conviction was never properly imposed.

The court’s 4-3 majority opinion, authored by Justice Yvette McGee Brown, reversed a judgment in which the  Fifth District Court of Appeals held that a motion filed by Donald Billiter of Canton in 2010 to withdraw his guilty plea to an escape charge of which he was convicted in 2004 was barred by res judicata (the rule that once a legal matter has been litigated to a final judgment, parties to that action are barred from asserting new claims that could have been raised in the decided case).

Billiter pled guilty to charges of aggravated burglary and domestic violence in 1998 and was sentenced to three years in prison.  As required by law, the trial court’s sentencing entry also imposed a term of postrelease control, i.e. a term of supervision by the Adult Parole Authority that Billiter must successfully complete following his release from prison. Because aggravated burglary is a first-degree felony, a term of five years of postrelease control was mandatory.  However the trial court incorrectly sentenced Billiter to postrelease control only for “up to a maximum of three years.”  Billiter did not appeal either his convictions or his sentence.

Billiter was released from prison in May 2001 and complied with the terms of his postrelease control sentence until committing a violation in March 2004.  Based on that violation, he was indicted on a charge of escape, pled guilty to that charge, and was sentenced to a new term of three years of postrelease control.  Billiter did not appeal.  Almost immediately, Billiter violated the conditions of his new postrelease control sentence. In August 2004 the court revoked his probation and sentenced him to six years imprisonment for escape.  Again, Billiter did not appeal.

In 2010, Billiter filed a motion in the trial court  seeking to withdraw his 2004 guilty plea to escape. In support of that motion, he cited the Supreme Court of Ohio’s 2009 holding in State v. Bloomer that “[I]n the absence of a proper sentencing entry imposing postrelease control, the parole board’s imposition of postrelease control cannot be enforced.”   Billiter asserted that because the portion of his 1998 sentence imposing postrelease control did not comply with the statutory mandate of a five-year term, it was void -- and therefore his 2004 conviction for “escaping” from that sentence was also void. 

The trial court denied his motion and the Fifth District Court of Appeals affirmed. Subsequently, however, the Fifth District certified that its decision was in conflict with three cases from the Second District.  The Supreme Court agreed to resolve the conflict between appellate districts, and ordered the parties to submit briefs on the following  legal question: “Where a criminal defendant enters a plea of guilty to escape, does res judicata bar the defendant from arguing his plea is void due to a post release control sentencing violation?”   

Writing for the majority in today’s decision, Justice McGee Brown quoted the court’s holding in State v. Fischer (2010) that  a void postrelease-control sentence “is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or collateral attack.”

“Fischer applies to every criminal conviction, including a collateral attack on a void sentence that later results in a guilty plea to the crime of escape,” Justice McGee Brown wrote. “Here, the trial court failed to sentence Billiter to a correct term of postrelease control.  Accordingly, his sentence was void. ...  The trial court’s incorrect sentence for postrelease control in 1998 was insufficient to confer authority upon the Adult Parole Authority to impose up to three years of postrelease control on Billiter. ...  Although the Adult Parole Authority actually did place Billiter under supervision, ... and Billiter did violate the terms of that postrelease control in violation of R.C. 2921.34(A)(1), Billiter’s escape conviction was based on an invalid sentence. Accordingly, the trial court was without jurisdiction to convict him on the escape charge.” 

“Billiter’s conviction and sentence for escape based on a postrelease control error do not fall outside of the scope of our decision in Fischer.  Therefore, Billiter is not barred by res judicata from arguing that his plea is void due to the trial court’s incorrect imposition of postrelease control.” 

Justice McGee Brown’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and Robert R. Cupp.

Justice Judith Ann Lanzinger entered a separate opinion, joined by Justice Evelyn Lundberg Stratton, in which she agreed with the majority that under current precedent defendants should be given the same ability as the state to collaterally attack sentences deemed “void” for error in the imposition of postrelease control.  She dissented, however, on grounds that the continued expansion of Fischer undermines res judicata and creates a situation in which judgments can be challenged many years after they were considered final.

Justice Lanzinger wrote: “We can easily avoid the judicial obstacle course arising from the void-sentence doctrine by simply clarifying that mistakes in imposing sentences make the sentence merely voidable--that is, subject to being reversed on direct appeal. This should be a simple case.  In 1998, Billiter erroneously received a discretionary three years, instead of the mandatory five years, of postrelease control as part of his sentence. Although the sentence was in error, it was voidable, not void, and both Billiter and the state had the right to appeal for 30 days after the sentence was announced. ... Of course, Billiter had no motive to appeal, since the shorter monitored period after prison was to his advantage. But the sentence was res judicata. Billiter’s later escape charge was based upon his breaking detention within the three-year period of postrelease control to which he had been sentenced, and his later violation of community control led to a new prison term.  Finis.” 

Justice Terrence O’Donnell entered a dissent, also joined by Justice Stratton, stating that in his view
the Fischer decision identified as void and subject to collateral attack only the part of a criminal sentence that is unauthorized by law, and expressly held that the remainder of a court’s judgment of conviction and the lawful portion of its sentencing order remain valid and subject to the rule of res judicata.

Applying that analysis to this case, Justice O’Donnell wrote:  “(I)t is undisputed that Billiter received notice, both at the sentencing hearing and in the sentencing entry, that he would be supervised by the Adult Parole Authority for up to three years after his release from prison. And it is undisputed that he complied with that supervision for almost three years, believing himself to be under detention.  Although the sanction is insufficient as a matter of law and subject to correction before completion of the sentence, the trial court nonetheless actually imposed a three-year term of postrelease control, the Adult Parole Authority had the authority to execute it, and Billiter therefore committed the crime of escape when he broke his detention. Accordingly, because Billiter’s conviction for escape is not void, his belated challenge to it is barred by the doctrine of res judicata, and I would affirm the judgment of the court of appeals.”

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2011-1501. State v. Billiter, Slip Opinion No. 2012-Ohio-5144.
Stark App. No. 2010C400292, 2011-Ohio-2230.  Judgment reversed.
O’Connor, C.J., and Pfeifer, Cupp, and McGee Brown, JJ., concur.
Lanzinger, J., concurs in part and dissents in part.
Lundberg Stratton and O’Donnell, JJ., dissent.

Video clip View oral argument video of this case.

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